The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.409 of 2025 Dr. Debendra Narayan Patri …. Appellant State of Orissa and others …. Respondents -Versus- Advocates appeared in this case: For Appellant : Dr. Binoda Kumar Mishra, Advocate For Respondents : Mr. Bimbisar Dash Additional Government Advocate for Respondent No.1 Mr. Swapnil Roy, Advocate for Respondent No.3 CORAM: HON’ BLE THE CHIEF JUSTICE AND HON’BLE MR. JUSTICE MURAHARI SRI RAMAN J U D G M E N T ---------------------------------------------------------------------------------- Date of Hearing : 21st April, 2025 Date of Judgment : 16th May, 2025 ---------------------------------------------------------------------------------- HARISH TANDON, CJ. 1. The instant appeal is directed against judgment and order dated 28th January, 2025 passed by the Single Bench in W.P.(C) No. 6644 of 2024 dismissing the writ petition filed by the W.A. No.409 of 2025 Page 1 of 19 appellant solely on the basis of the stand taken by the State authorities in the counter affidavit which are apparently contrary to the documentary evidence produced before the writ Court. 2. The appellant approached the writ Court assailing the letter no. 11439/HE dated 16th March, 2024 issued by the Special Secretary, Department of Higher Education, Government of Odisha in appointing the respondent no.3 as the Principal-in- Charge-cum- Secretary of Narasinghpur College, Narasinghpur, District-Cuttack with immediate effect till the regular Principal- cum-Secretary is appointed by the Government after constitution of common cadre and feeder gradation list of readers. The appellant claims the following relief:- “It is therefore, prayed that this Hon'ble Court would be graciously be pleased to admit the Writ Petition, call for the records and issue RULE NISI calling upon the Opposite Parties to show cause as to why; i) approval order of appointment of Opposite Party No.3 under Annexure-3 shall not be set aside/quashed; And if the Opposite Parties fail to show cause or show insufficient cause, the order of appointment of Opposite Party No.3 as Principal of Narasinghpur College be set aside/quashed; W.A. No.409 of 2025 Page 2 of 19 And pass any other appropriate order/orders, Writ/writ, direction/directions as this Hon'ble Court may deem just and proper in the interest of justice;” 3. The genesis of the dispute can be reasonably ascertained when the respondent no.3 was transferred from T.T. Mahavidyalaya, Ghatagaon, Keonjhar to the Narasinghpur College, Narasinghpur by the order dated 07th February, 2024 issued by the Department of Higher Education upon concurrence of the Hon’ble Governor. Admittedly, respondent no.3 joined the initial post prior to the date of joining of the writ petitioner/appellant in the service. There is no cavil of doubt that the person who is senior in service shall be placed in a higher position than that of the junior in conferment of the power in discharging the solemn duty for smooth functioning, administration and management of the college. However, dispute
Decision
cropped up when the writ petitioner/appellant who claimed to have been appointed as Principal-cum-Secretary of the said college is removed from the said post by virtue of the said impugned letter and the respondent no.3 is appointed as the Principal-in-Charge- cum-Secretary without affording any opportunity of hearing to the writ petitioner/appellant nor any proceeding was initiated for his W.A. No.409 of 2025 Page 3 of 19 removal. According to the State, recourses to removal of the Principal-cum-Secretary becomes inevitable in the event the appointment is made to such substantive post, but it does not invite such exercise when the person was officiating as the Principal- cum-Secretary and not appointed regularly to a substantive post. 4. Before we proceed to discuss the various correspondences, letters and orders issued by the Department of Higher Education, the facts emerged from the respective parties are required to be adumbrated hereinafter. 5. Undeniably, the writ petitioner/appellant was appointed as a reader in Commerce in Salipur (Auto) college, a Non- Government Aided College on 25th September, 1991 whereas the respondent no.3 was appointed on 20th September, 1991. By a general order dated 17th September, 2022 the writ petitioner/appellant was transferred to Narasinghpur college, Cuttack as a Reader in Commerce and in pursuance thereof, he joined the transferred post on 17th February, 2023. One Umakanta Sahoo, claiming to be the Principal-cum-Secretary of the said college made a communication to the Special Secretary, Department of Higher Education, Odisha on 31st March, 2023 W.A. No.409 of 2025 Page 4 of 19 making a proposal for new Principal and appointment of the writ petitioner/appellant as Principal-cum-Secretary of the said college as he is superannuating on and from 30th April, 2023. The said communication further revealed that the writ petitioner/appellant being the senior most Reader in the college amongst others, qualifies to be appointed in such post. Pursuant to such recommendation of the outgoing Principal-cum-Secretary, letter no.18013/HE dated 1st May, 2023 was issued by the Special Secretary, Department of Higher Education, Government of Odisha to the President, Governing Body, Narasinghpur College, Cuttack approving the appointment of the writ petitioner/appellant as Principal-cum-Secretary of the said college with effect from 1st May, 2023 in addition to teaching in his own subject with further financial power to discharge the duties of D.D.O for drawal and disbursement of pay and other bills of the college. Since thereafter the writ petitioner/appellant continued to discharge his duty in such capacity, but the dispute arose after the transfer of the respondent no.3 by order dated 7th February, 2024 passed by the Special Secretary, Department of Higher Education, Government of Odisha. After joining at the transferred post, the respondent W.A. No.409 of 2025 Page 5 of 19 no.3 noticed that he being senior in service is placed under the writ petitioner/appellant and caused a letter to the Sub-Collector-cum- President of the Governing Body of Narasinghpur College flagging such issue and claimed for appointment as the Principal- in-Charge instead of the writ petitioner/appellant. Decision was taken by the Governing Body of the said college which was communicated with letter no. 2152 dated 2nd March, 2024 to the Commissioner-cum-Secretary, Department of Higher Education, State of Odisha proposing/recommending the appointment of respondent no.3 as the Principal-in-Charge-cum-Secretary of the said college as he is senior to the writ petitioner/appellant. Pursuant to the said resolution, the impugned order dated 16th March, 2024 was issued by the Department of Higher Education appointing respondent no.3 as the Principal-in-Charge-cum- Secretary, thereby relegating the writ petitioner/appellant to the post of Reader. 6. The pivotal issue involved in the instant litigation is whether the writ petitioner/appellant was appointed as a Principal- cum-Secretary of the said college or Principal-in-Charge-cum- Secretary of the said college. As indicated in the opening W.A. No.409 of 2025 Page 6 of 19 paragraphs of the instant judgment, there appears to be an ambiguity in the correspondences describing the designation as Principal-cum-Secretary instead of Principal-in-Charge-cum- Secretary of the said college. The prelude to the dispute arose from a letter of the erstwhile Principal-cum-Secretary of the said college while forwarding the name of the writ petitioner/appellant being the senior-most teacher/reader at the relevant point of time to be appointed as Principal-cum-Secretary thereof. The letter dated 31st March, 2023 issued by the said Umakanta Sahoo describing himself as the Principal-cum-Secretary of the said college is reproduced as under: “Ref No. NC/195/23 Date 31.03.2023 “From To Mr. Umakanta Sahoo, Principal-Cum -Secretary Governing Body, Narasinghpur College, Narasinghpur, Dist. Cuttack, Odisha Sj. Ramakanta Nayak, OAS (SB-1), Special Secretary to Government, Department of Higher Education Odisha, Bhubaneswar Subject: Proposal and appointment of Dr. Debendra Narayan Patri, Reader(SS) in Commerce as Principal Cum principal new for W.A. No.409 of 2025 Page 7 of 19 of College, Secretary Narsinghpur, Dist. Cuttack, Odisha wef. 30.4.2023 AN Narasinghpur in 51671 Letter No. the Department of Higher dated Ref. 1) Govt Education 15.12.2022. 2) Erstwhile Directorate of Higher Education Letter No. 27.09.2018 (Regarding procedure for selection of college teachers for Principal of Non-Govt. Aided Colleges). 31175 dated Sir, In inviting your kind attention to the subject and references cited above I am to state that Mr Umakanta Sahoo, Reader (SS) in Commerce and the present incumbent Principal cum Secretary of Narasinghpur College, Narsinghpur, Dist. Cuttack, Odisha shall retire on 30th April 2023 according to the provision of Rule-19 of The Orissa Education [Recruitment and Conditions of service of Teachers and Members of the Staff of Aided Educational Institutions) Rules 1974. That, in accordance with the Directorate of Higher Education Letter No. 31175 dated 22.09.2018 a seniority list of Teachers of the Narasinghpur College, Narsinghpur/Panel names of Principal I/C as sought in Annexure-A is enclosed herewith for necessary action at your end. That, in view of the Superannuation of the present incumbent Principal On 30th April 2023 AN and in consideration to the inter se seniority, designation and qualification, Dr. Debendra Narayan Patri, Reader (SS) in Commerce may be appointed as the Principal Cum Secretary (with DDO) at Narasinghpur College, Narsinghpur, Dist. Cuttack, Odisha w.e.f. 30th April 2023 AN for the smooth functioning of the College administration and for which I shall be thankful to you. W.A. No.409 of 2025 Page 8 of 19 With regards, Yours faithfully Sd/-31.03.2023 Principal-cum-Secretary, Narasinghpur College, Narasinghpur, Cuttack Encl. 1. Certified copy of the Annexure-A & Orders Approval” 7. Annexure-A as appended thereto indicates the names of four persons who were holding the posts in terms of their seniority is reflective of the seniority position of the writ petitioner/ appellant at relevant point of time. On the basis of the said letter and the recommendations so made, the Special Secretary, Department of Higher Education, Government of Odisha issued a letter dated 1st May, 2023 appointing the writ petitioner/appellant as the Principal-cum-Secretary of the said college with effect from the even date with financial power to discharge the duties of D.D.O. for drawal and disbursement of the pay and other bills of the college. The said letter is reproduced as under: “GOVERNMENT OF ODISHA DEPARTMENT OF HIGHER EDUCATION No.HE-NCFT-I-MISC-0146-2023 18013/HE Date 01.05.2023 W.A. No.409 of 2025 Page 9 of 19 From To Sri Ramakanta Nayak, OAS (SS), Special Secretary to Government The President, Governing Body, Narasinghpur College, Narasinghpur, District-Cutlack Sub: Approval of appointment of Dr. Debendra Narayan Patri, Reader in Commerce as Principal-cum-Secretary of Narasinghpur College, Narasinghpur, District-Cuttack Ref. Letter No.195 dated 31.03.2023 of Narasinghpur Principal, Narasinghpur, District-Cuttack the College, Sir In inviting a reference to the subject cited above, I am directed to say that after careful consideration, the Government in Department of Higher Education have been pleased to appoint Dr. Debendra Narayan Palri, Reader in Commerce as Principal-cum Secretary of Narasinghpur College, Narasinghpur, District-Cuttack with effect from 01.05.2023 in addition to teaching in his own subject. The financial power is also delegated in his favour to discharge the duties of D.D.O with effect from 01.05.2023 for drawal and disbursement of pay and other bills of the college. Yours faithfully Sd/24.04.2023 Special Secretary to Government Memo No. 18014/HE Date 01.05.2023 Copy forwarded the Sub-Collector, Cuttack, District-Cuttack / Regional Director of Education, Bhubaneswar/ Accounts Officer, of Higher Education, Odisha, Department to W.A. No.409 of 2025 Page 10 of 19 Bhubaneswar/ Principal, Narasinghpur College Narasinghipur, District-Cuttack for information and necessary action. Sd/- 29.04.2023 Special Secretary to Government” 8. The cumulative effect of the aforesaid letters exposits that the appointment was made as Principal-cum-Secretary of the said college and not Principal-in-Charge-cum-Secretary as stated by the Government in the counter affidavit. A plea taken by the Government that a conscious decision was taken uniformly not to appoint the Principal-cum-Secretary on a regular basis, but all such appointments were made as Principal-in-Charge-cum-Secretary of the respective college and, therefore, the claim of the writ petition/appellant is untenable. Interestingly, neither the governing body in its recommendation/proposal addressed the erstwhile Principal-cum-Secretary as the Principal-in-Charge nor the letter dated 1st May, 2023 is indicative of the officiating powers of the Principal-cum-Secretary having vested upon the writ petitioner/appellant. Subsequently, a policy was adopted by the Department of Higher Education on 24th July, 2023 for appointment of competent teachers as Principal by regulating the selection process. The said Policy was felt necessary for overall W.A. No.409 of 2025 Page 11 of 19 development of the educational standard in the college and for effective administration in the non-government aided colleges of the State on account of retirement or otherwise. The said policy postulates the following procedures to be adhered for appointment as Principal of Non-Government Aided Colleges in the State. “1. While submitting seniority list comprising names of four senior-most lecturer/reader as per revised format (Annexure-A), an individual data sheet (Annexure B), must be furnished with supporting documents, for the recommended names, the proposal regarding for consideration of appointment of next Principal of the college. 2. The specimen signatures of the proposed four senior most teachers must be obtained in the proposal with countersignature by the President, Governing Body of the college/ special officer appointed for the college concerned with seal. 3. Proposal to this effect should be submitted to this Department at least one month before retirement by the outgoing Principal and in other cases such as transfer/suspension/sudden demise etc, within three days, by the acting Principal, for smooth functioning of the college. 4 The retiring Principal on attaining the age of superannuation, shall not draw his/her last month salary if, he/she fails to submit the proposal for appointment of new Principal, before one month. It is the duty of the account bursar to ensure that last month's pay to the principal is not released unless the information is sent to the department as instructed above. While delay in submitting the W.A. No.409 of 2025 Page 12 of 19 seniority list, it should be clearly mentioned whether the pay for the last was released or not. 5. The Principal and President. Governing Body shall ensure correctness of data provided in the proposal. 6. The unwillingness of lecturer/reader to take the responsibility of Principal-cum-Secretary of the college shall be furnished in shape of an affidavit in this regard to consider his/her case.” 9. On a meaningful reading of the procedures as reproduced hereinbefore mandates the names of four senior-most teachers/readers in an individual data sheet with supporting documents for recommending their names together with the specimen signatures of the proposed four senior-most teachers countersigned by the President of the Governing Body of the college to be submitted that is one month before the retirement of the outgoing Principal. Though the procedures for appointment of Principal was adopted by way of policy subsequent to the recommendation made by the erstwhile Principal, who was about to demit office on retirement, but the recommendation made by the erstwhile Principal adhered the aforesaid procedures in the recommendation letter dated 31st March, 2023. It is inconceivable that all the correspondences of the Government appointing the W.A. No.409 of 2025 Page 13 of 19 Principal is treated to be an appointment of the Principal-in- Charge-cum-Secretary despite the fact that the appointment to the post of a Principal-cum-Secretary is evidently visible there from. Even the letter of appointment of the erstwhile Principal annexed to the writ petition is the manifestation of a decision of the Government that his appointment was to the post of Principal- cum-Secretary of the said college and not Principal-in-Charge- cum-Secretary as pleaded in the counter affidavit. The subsequent policy adopted by the Government for appointment of Principal- cum-Secretary in the Non-Government Aided Colleges within the State clearly postulates that the recommendation must be sent one month before the retirement of the Principal containing the names of four senior-most teachers of the college and counter signed by the Governing Body which in fact was followed by the erstwhile Principal and, therefore, was in tune with the same. There is no statutory procedure in the Rules containing the express provision for appointment of a Principal. The stand of the Government taken in the counter affidavit does not indicate in absolute terms that there is no post of Principal in those colleges and once the post of Principal is created and sanctioned, such post has to be filled up by W.A. No.409 of 2025 Page 14 of 19 adopting the procedure which would withstand on the parameters of the reasonableness doctrine. The post of Principal is a sanctioned post and, therefore, the appointment to such post by adopting a procedure in absence of any express provision in the rules, cannot be impinged if such appointments are made adopting a method which was subsequently found to be in consonance with the policy subsequently adopted by the Government. The Government is a model employer and their decision must withstand on the principle of reasonableness. It is not expected from the Government to take a stand inconsistent with the stand taken earlier in the counter affidavit filed in the writ petition. Ordinarily, the post of a Principal in the college is regarded as a promotional post with the higher scale of pay attached thereto. None of the documents produced before the Court nor the parties to the writ petition pleaded nor disclosed the scale of pay attached to the post of Principal, but in a common parlance recognised in a service jurisprudence, such promotional posts has the higher scale of pay and the person promoted to such post gets the benefit thereof. The contention of the Government that throughout the State the Principal-cum-Secretary were not appointed in any of the W.A. No.409 of 2025 Page 15 of 19 colleges does not appear to be a correct proposition on the basis of an office order dated 4th August, 2023, where one Ujwalakant Das, who was a Reader in Mathematics in Sadhu Gaureswar College, Kanikapara in the district of Jajpur claimed his appointment as the Principal-cum-Secretary of the said college, but being in a Junior Lecturer cadre was denied as the other Reader was found senior to him. The said office order dated 4th August, 2023 conveys the manifest intention of the Government that mere joining at an earlier point of time is not a determinant factor, if the incumbent belong to a Junior Lecturer cadre and not to a Lecturer cadre and, therefore, a person holding the higher promotional post is entitled to be appointed as a Principal. We do not find any such case having made out in the instant matter as the writ petitioner/appellant was holding the post of Reader in a college and was senior amongst all the other teachers at the relevant point of time. 10. The anomaly was created on transfer of the respondent no.3 by the Government to the said college without taking into consideration that the said respondent is senior in service and, therefore, cannot be placed below the officer junior to him. Even if W.A. No.409 of 2025 Page 16 of 19 the post of a Principal is substantive post, the person senior to a teacher in service should not be placed beneath such junior despite the fact that such junior was holding the promotional post of a Principal. The Government ought to be vigilant in transferring the teachers from one college to another by adhering the seniority as it impacted the moral of the employee and inculcate the sense that such transfer to have been made punitively. 11. In the service jurisprudence once a substantive post is held by a person, he cannot be relegated to a lower post without following the procedure, if there be any, or in absence of any procedure an opportunity of hearing is required to be given as reverting the person to a lower post is always regarded as punitive. In absence of any proceeding having initiated on misconduct, relegating a person to a lower post is a punishment, which cannot be inflicted without the due process of law. The materials produced in the instant case leaves no ambiguity that the appointment of the writ petitioner/appellant was at a substantive post of Principal-cum-Secretary of the college and not as a Principal-in-Charge-cum-Secretary and, therefore, the Single Bench ought not to have proceeded on the ipse dixit of the counter W.A. No.409 of 2025 Page 17 of 19 affidavit taken by the Government, which runs contrary to their own stand taken in several letters, circulars and/or orders issued from time to time. The law does not recognise reversion of a person appointed in a substantive post to a lower post without initiating a proceeding or following the process of law. 12. We are, therefore, unable to countenance the stand taken by the Single Bench on the ipse dixit of the counter affidavit filed by the Government. The order needs interference. The same is hereby set aside. Consequentially the order appointing respondent no.3 as Principal-in-Charge-cum-Secretary of the college is also set aside. The writ petitioner/appellant who was appointed as a Principal-cum-Secretary of the said college is upheld. We are not unmindful of the fact that the respondent no.3 being senior in the service was wrongly transferred to the Narasinghpur College, Cuttack as such transfer disturbs the very fabric of the moral of the respondent no.3 and, therefore, it is open to the Government to take a decision to transfer the respondent no.3 to any college adhering his seniority. It is also open to the Government to take a decision on appointment of the respondent no.3 to the post of Principal-cum-Secretary or Principal-in-Charge-cum-Secretary, if W.A. No.409 of 2025 Page 18 of 19 he is otherwise found eligible in any college other than the Narasinghpur College, Cuttack. 13. With these observations the appeal is disposed of. No order as to costs. I agree. (M.S. Raman) Judge (Harish Tandon) Chief Justice Arun Mishra Signature Not Verified Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Odisha, Cuttack Date: 16-May-2025 17:40:11 W.A. No.409 of 2025 Page 19 of 19